Major problem with used car bought from dealer - advice requested!

[RichC1981]

Hello

We have a fairly major problem with a used car which we bought off a dealer. I am looking at options for pursuing a claim under the Sales of Goods Act and would be grateful for any advice as to whether I have a case!

The facts of the matter are as follows:-

- Vehicle is a 2003 Ford Focus TDCI with 100000 miles purchased from a dealer on 15th January 2013

- Vehicle was slightly difficult to start from cold ever since purchase - we had it serviced and the glow plugs checked - all fine - and decided we could live with it.

- On 4th March (7 weeks after purchase) we noticed a regular grinding noise when the clutch was depressed and a vibration at 1800 RPM which made the car shake.

- Problem was intermittent but got worse, so we took it to a Ford Dealership on 16th March who diagnosed failure of the dual mass flywheel. The repair cost was quoted at £1,100 (new DMF, new clutch and slave cylinder)

- The Ford technician after diagnosis asked if we had starting troubles and he advised this is a symptom of early DMF failure (swarf from the DMF gets in the starter and affects operation)

- We contend that the dealer is in breach of contract under SOGA as vehicle has "not lasted a reasonable amount of time" and was not "fit for purpose". We also contend that it is reasonable to assume the fault was present at the time of purchase given it was only 7 weeks which elapsed when it became obvious something was wrong and the car had only done around 1,200 motorway miles.

- I have spoken to the dealer who initially said it was "one of this things" and implied I did not have recourse as it was only a £2,000 car and was fine when he sold it. When I stated my position in terms of SOGA he said he would "look into repair costs" but advised that he would not pay for it. Nonetheless, he said he would get back to me in 48 hours. He also asked me to obtain a second opinion and quote from a non franchised garage (which I will do).

- I advised that a satisfactory outcome would be for the dealer to pay for the necessary repairs.

To avoid confusion I have written a letter which outlines our stated position as above and intend to send tomorrow via recorded delivery.

I suppose my question is - given the above - do you think I have a case against the dealer? I am a fair person and understand it is a fairly cheap (£2,000) car which is 10 years old. That being said, I would still expect it to last 7 weeks without a major fault! Is this reasonable?

It could also be argued that it was exhibiting early signs of DMF failure when we bought it - i.e. the poor starting. Note - we werent aware of the poor starting issue when we bought the car as it was always warm when we started. It was only when my partner went to pay the balance and the keys were handed over that he mentioned it and gave her a business card with 'cold start' instructions written on the back!!!

Would really appreciate any help on this - its a lot of money to fork out for repairs and one of the reasons we paid a bit more to buy from a dealer was that I thought we would have a bit of protection!

Thanks a lot

Richard

 

[ALewis]

Hi Richard,
You're obviously an educated person, and I admire that over a common 'you tell me my rights, because I can't be bothered finding out'.
But anyway, you are ever so slightly on one point going down the wrong path.
You mentioned 'last a reasonable length of time' .. Unfortunately this part of protection is not present for second hand goods, from a business or not.

Your rights are however for 2nd hand cars (Under SOGA) - S.13 Description (must match any descriptions provided), S.14 Satisfactory Quality (it must be of satisfactory quality taking into account all relevant circumstances) and as for the term 'fitness for purpose' , a second hand vehicle sold must be 'of a roadworthy condition' (unless declared SORN of course).

When you had the vehicle services initially, was this through this dealer? Was it made known to the dealer?

And the noise / vibrations on the 4th March, was this made known to the dealer at the time?

The reason being, it took nearly 9 weeks for the vehicle to be taken to be fixed / diagnosed, you could struggle to claim that you have not accepted the vehicle, especially seeing as you 'enjoyed continued use' of the vehicle. (But this last paragraph would only relate to rejecting the vehicle for a full refund).

However under S.14 you would be entitled to either: full refund , partial refund, damages (compensation), a repair.

Traders are not liable, however:
• For fair wear and tear.
• For misuse or accidental damage by the customer.
• If they specifically draw to your attention the full extent of any fault or defect before you buy the vehicle.

I'm not suggesting anything whatsoever, though I anticipate that the dealer will try to rely on the business card with the instructions on. Though obviously you can contest this as the trader *should* know the full extent, but has failed to tell you about it and tries to fob off with 'its because its a cold day'.

If the dealer decides to ignore your complaint / becomes aggressive / unhelpful / unfair or anything that does not treat you fairly, they could potentially be in breach of the CPR's

Hope this helps
Adam

 

[RichC1981]

Hi Adam

Thanks for your quick response on this!

Having looked into things a in a bit more detail I agree with your point about "lasting a reasonable length of time" and have removed this from my letter. After giving it some thought I think perhaps the "not satisfactory quality" is a more appropriate argument than "not fit for purpose". I contend that it is not of satisfactory quality as it is insufficiently durable / reliable than would be expected even for a vehicle of its age and mileage.

I agree that it would be difficult to argue we have not accepted the vehicle - in fact, bar this problem, it is a good car and we are quite happy with it. We would prefer for the dealer to rectify the fault rather than pursue a refund.

The 9 week time which has elapsed since purchasing the car and reporting the fault is not ideal, but I do feel that the dealer has a case to answer and think it is worth pursuing.

We will see how things develop!

Thanks again

Richard

 

[ALewis]

Hi,

Right well, providing that you do not wish to reject it, AND provided that you can't clutch onto the 9 week time difference...

I would suggest pursuing S.14 Satisfactory Quality as the car is not of the quality expected.
You could also argue that the dealer knew of the problem albeit at a lesser state (doesn't start in cold), but also knew the outcome of the issue, yet still chose not to notify you of the full extent of the fault.

Make sure you put a deadline on the letter for response (as a notice before action). And send the letter by a recorded means for proof of delivery.


You can also put on the letter that you have been given legal advice - if you feel it's necessary. (I'm a member of the Trading Standards Institute too - if you want it to sound stronger).

However I will say that stating the above could backfire, and be deemed as threatening.

You clearly know your stuff anyway, I don't think you'll have a problem.

 

[RichC1981]

Hi Adam

I thought I would give you an update... There has been a bit of too-ing and fro-ing with upshot that the dealer made a goodwill offer of 30% of the repair cost, increasing to 40% of the repair cost after a telephone discussion. He indicated in our discussion he would not be willing to pay more as he feels it is an issue of "fair wear and tear" of the vehicle.

It is a bit of a tricky one really as the car has done a few miles (100,000) and is 10 years old, but I still feel a 'reasonable person' would not expect a £2000 car with full service history and 12 months MOT to require such expensive repair works 7 weeks after purchase. He also claims to have a mechanics report indicating the car was fault free at the point of sale, though the OFT guidance for used car dealers indicates that to successfully refute a claim the report should detail the specific check undertaken in relation to the problem. I dont think he can do this as the fault could only be ruled out in its early stage by removing the gearbox and visually inspecting the flywheel.

I would be willing to accept less than the total repair cost to take account of the betterment achieved from having a brand new fly wheel fitted and alsdo to avoid the hassle of the small claims court - though I do feel I have a strong case.

I think I will respond to him with a final letter with a reasonable counter offer, and intimating that we would be willing to take him to small claims court for breach contract for the full amount (plus fees and expenses) if we cannot reach agreement.

Does this seem a fair approach?

Thanks a lot

Richard

 

[ALewis]

Hi again, thanks for the update.

If the dealer thought of the problem as fair wear and tear, why is he even offering a penny?
If the OFT guidance says what you said, ask the dealer for the details of the specific checks, if he can't provide these (which you assume he can't), then he will have no defence to the matter.

As for what the reasonable person would expect; only a judge can say what would be expected, and without any mechanical knowledge, I think a judge may say that a car of such age and of such mileage would be expected to not be 100% . Saying this, should the reasonable man be expecting a better condition vehicle due to the representation made by the salesman, then the judge may favour your argument.

I know what you mean about the repair bill, but don't expect the dealer to offer the full amount without a fight, understandably they still have a business to run.

If you are negotiating the payment % through letters, don't put your deadline before action. Continue negotiations until you hit the brick wall. When you hit this brick wall, then mention about the further action, otherwise it could be deemed as threatening (ie; 'unless you agree to pay 80%, I'm going to file a claim at SCC'.. Not that you'd word it like that, it's still sort of blackmail).

Also a further note, you're not specifically going for 'breach of contract', it's a 'breach of warranty' (which means you can't get a full refund, but can claim damages - this is because you've 'accepted' the vehicle)

Sorry the post isn't very precise, I'm no judge

 

[atemporal]

I have a DMF fault on my car. Slightly different though. I bought a Ford Galaxy from new. The car is 4 years old. I took delivery of it 45 months ago. It has now 41000 miles on the clock. I first reported the fault over 6 months ago when it started to vibrate. The Ford Dealer took it in but the vibration did not start again. I have just taken it in a few weeks back for a service an MOT which cost over £650 sue to a trailing arm fault. A few days later this vibration started. I immediately took it to the ford dealer who have diagnosed as DMF and quoted £1300 to repair including new Clutch (at 40000 miles not required) The dealer have told me as I use them for servicing etc they would give a discount of £350 and I should also contact Ford Direct. I have done this and after over a week of waiting Ford have offered a free service in twelve months time. Should I expect a bigger gesture of goodwill and by whom? The dealership or Ford or both?
Legally where do I stand?